Leg. Dev.: Telecommunications Licensing

3 Colum. J. Eur. L. 493 (1997)

Geneviève A. Helleringer.

On March 6, 1997, the telecommunications ministers of the 15 Member States agreed on an updated framework setting out the rule for granting licenses to international and EU-based telecommunications operators. On April 10, 1997, the European Parliament and the Council adopted Directive 97/13/EC on a common framework for general authorizations and individual licenses in the field of telecommunications services. The Directive lays down common rules to be applied by Member States regarding the procedures and conditions for providing telecommunications services.

A number of preliminary measures led up to the Directive. The Directive follows both a Council Resolution of December 22, 1994, and a Commission Directive of March 13, 1996, together confirming the commitment to full liberalization of the telecommunications sector by January 1, 1998. Other specific requirements for licensing were articulated in Part II of the Green Paper on the Liberalization of Telecommunications Infrastructure and Cable TV Networks, which indicated license award procedures, selection criteria, and the conditions that may be attached to licenses for infrastructure. During the legislative process, the Council also consulted the European Parliament and approved all of the Parliament’s suggested second reading amendments, most notably those intended to facilitate the provision of new services. The regime also largely follows that proposed in the opinion presented by the Economic and Social Committee (ECOSOC). The Committee was consulted by the Council, under Article 198 of the EC Treaty. In this opinion of April 24, 1996, the ECOSOC welcomed the Commission proposal and restated its view that license award procedures should be as streamlined and straightforward as possible. The Directive ultimately establishes a light framework designed to guarantee easy access by operators to telecommunications markets while allowing governments to guarantee that essential services are offered. The licensing regime aims to minimize bureaucratic barriers to entry into the liberalized market and to help create conditions for a single market in telecommunication.

The scope of the Directive “concerns the procedures associated with the granting of authorizations and the conditions attached to such authorizations, for the purpose of providing telecommunications services, including authorizations for the establishment and/or operation of telecommunications networks required for the provision of such services” (Article 1(I)). Member States must ensure that telecommunications services and/or networks can be provided either without authorization or on the basis of a general authorization, to be supplemented where necessary by rights and obligations requiring individual licenses. The Directive draws a distinction between “license” and “authorization” (Article 2(1)(a)). Authorizations do not require individual approval for each telecommunications operator before beginning operations. Furthermore, authorizations are coupled with set conditions that the operator must comply with (Article 4; Article 5). On the other hand, licenses call for a prior inspection (Article 8; Annex 2; Annex 4), and can only be issued by Member States to enumerated cases (Article 7(1)). As part of this licensing regime, transparent criteria and procedures for complaint have been established for the telecommunications sector.

Under the Directive, operators will be entitled, after a prior inspection, to standard on-demand licenses, or “general authorizations,” (Article 4; Article 5) for all services, including voice telephony and data and picture transmission. Encouraging the use of general authorizations should foster the ECOSOC’s plan of streamlining the license award procedure. Service operators operating under this general authorization and adhering to certain rules will not have to obtain specific approval before being allowed to offer services.